Tuesday, October 2, 2012

When defending a DWI case one of the first things that must be considered is the BAC level.

B.A.C. = Blood Alcohol Concentration.

Some defense attorneys want to put their heads in the sand and pretend it doesn't exist, it doesn't count, and it doesn't matter. That is just plain crazy.

Whether the measurement level is based upon a breath or blood sample will reflect upon the "perception" of it's accuracy to those that will make and accept plea offers. Remember, a Breath test is an "indirect" measurement of Blood alcohol level. Whether this number is an accurate number is to be discussed in another time (and blog). Let's just approach it from the standpoint that it is "kinda-sorta" accurate (plus or minus 0.02 BAC). After all it will always be merely a number hanging in space until it is flushed out and challenged.

BACs and Relativity

Einstein's law of relativity is as much part of DWI defense as anything else. Really it's all relative. High and low mean nothing without a standard or a norm. Things can get tricky when stating something as erroneous as a number is truly high or truly low. Let's just say that BAC levels run the gamut from the very high (0.18 BAC is a NYS Aggravated DWI) to the very low (Less than 0.10), but generally speaking 0.15 is in many states considered moving you towards the higher range (for those non-alcoholics) of BACs.

Relative Levels of Contrast State to State

For sake of contrast, in the neighboring state of New Jersey, a 0.10 BAC is the deciding line between a 90 day license suspension, and a 210 day license suspension. And NJ offers NO conditional license or hardship license privileges. Arizona punishes more at the 0.15 level, so even state to state there is NO set standard.

THE CRUX of the Matter: BACs and Government Assumptions

If your DWI/DUI/OUI case has a BAC (any BAC) then that level may impact how they (Judges, Prosecutors, Evaluators, Probation Officers) view (perceive) your case and situation. Government can be faceless and nameless. Government can remove individuality and uniqueness. This mentality of "boxing" and "categorizing" people into black and white can be stifling and inaccurate. But government people are people and as such they make Assumptions (pre-judgments) regularly. It's NOT fair, it's NOT just, but it just is. So we need to deal with it and them. As they say, "ass-u-me and you make an ass of u and me."

Assumption #1:A "Higher" BAC means this person has a "High" Tolerance to Alcohol.

Tolerance means that it takes greater quantities of a given substance/drug to achieve the same affect. BTW Alcohol is a drug (socially acceptable and legal) but a drug nevertheless. People who are alcohol tolerant can have higher BACs, and still function (walk, talk, drive) while those without tolerance would pass out or throw up.

Alcohol is a toxin, and the body seeks to eliminate it quickly at higher levels (concentrations). This is what a normal, healthy, and fully functioning body does (or is supposed to do). The body will expel (eliminate) alcohol at approximately 0.015 to 0.020 per hour. So each drink takes about an hour give or take to assimilate and eliminate.

Do these government people always factor in genetics? NO.
Do they always factor in variances based upon food intake, sleep patterns, and/or gender? NO.

Assumption #2:Higher BAC means this person has been drinking large quantities of alcohol over a long period of time.

Some District Attorneys and some Judges will assume you have a familiarity with the spirits. This is a nice way of saying, "s/he drinks regularly" and with "gusto." This person has been doing this dangerous behavior for a long time, and just has not been caught (DWI).

Assumption #3:Higher BAC, high tolerant people have an issue with Alcohol/drugs.
The concerns of the Court and the concerns of the District Attorney must be addressed in any DWI/DUI/OUI case. These people have a job to do. One aspect of that position is to protect the community. To eliminate threats and risks. Are you a threat? Are you a risk? This last assumption is the most important to remedy.

Allaying fear and allaying concern is an important aspect of DWI defense that is too often ignored. Defense usually deals with the front end of a case (legal practice) but never firms up for practicalities. Taking into consideration that over 90% of cases are completed with plea bargains it is foolish to pretend that risk management is the least important aspect of a DWI case. Alcohol dependency is on everyone's mind, whether it gets to their lips is another story. The nuts and bolts of drug/alcohol defense issues in a DWI/DUI case is a topic for a more lengthy and separate discussion.

How Important is Risk Management?

It is now 2012, and the world that we live in, work in, and manage is a constant negotiation. There are cases that are in-line for litigation, for trials, for hearings, for motions, but those are in the vast minority. They get the most press, the most news coverage, but they are a thin segment of the day to day realities.

Thetrue lines that divide county jail from state prison, jail from non-jail, short term incarceration and long term incarceration, probation from conditional discharges are where the majority will have their fate. They can be easily crossed in either direction. That is how cases fall or slip into a category or as they say "by the way side." Falling into the abyss, forgotten, and done.

A counselor of law and at law will be a navigator of these treacherous waters. Of these fields loaded with land mines. Planning a strategy to deal with all aspects of a case or situation will encompass looking at the whole. The front and the back.

Risk Management: Past, Present, and Future

A whole blog post will be devoted to the importance of dealing with a DWI/DUI/OUI case fully by considering not just what has happened (an arrest/charges) ie. YOUR PAST but more importantly how we will approach and Prepare for YOUR FUTURE (jobs, employment, certifications, degrees, licenses) etc.

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I personally abhor pretense. Coming from Brooklyn, NY, you can't BS a BSer. As educated or as knowledgeable as I think I am (I have a wife to level me off) I believe everyone deserves respect.

"Question Authority:" I have always questioned authorities. To the dismay of my parents. I dislike unequal and/or unjust relationships (Afterall, I am a Libra). I was born under those scales of justice, and the balance they symbolize.

Authorities to Question and Challenge:

The Government, Law Enforcement, Insurance Companies.

I believe they all need to be kept in check.

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